1996 JTR(SC) 1498
1996 4 CCC(SC) 94 ; 1996 4 CurCC(SC) 94 ; 1996 9 JT 435 ; 1996 7 Scale 478 ; 1998 9 SCC 480 ; 1998 KHC 3898 ; 1996 7 Supreme 666
1996(7) Supreme 666
SUPREME COURT OF INDIA
K. Ramaswamy, Faizan Uddin and G.B. Pattanaik, JJ.
Mohd. Ali & Ors. etc. etc. -Appellants
versus
State of U.P. & Ors. -Respondents
Civil Appeal Nos. 2313-14 of 1977
Decided on 19-9-1996
IMPORTANT POINT
In Land Acquisition cases simultaneous publication of the notification u/s 4(1) and the declaration u/s 6 is valid in law.
Act
Referred
:LAND ACQUISITION ACT : S.5(a), S.6, S.17(4), S.4(1)
UTTAR PRADESH LAND ACQUISITION AMENDMENT ACT : S.5
(A) The Land Acquisition Act, read with the Uttar Pradesh Land Acquisition Amendment Act 5 of 1991, governs the acquisition where the State, exercising its power of eminent domain under Section 17(4), dispenses with the enquiry under Section 5-A. Section 4(1) provides for the publication of a notification of acquisition, and Section 6 requires a declaration, with the Amendment Act 68 of 1984 having settled that pre-1984 law permits simultaneous publication of both instruments. The 1991 Amendment brought the State of Uttar Pradesh in line with this settled position, validating the simultaneous October 12, 1974 publication of the notification and declaration as a lawful exercise of power, including the dispensing with the Section 5-A enquiry, and enabling further steps under Section 9 and vesting of land free from encumbrances under Section 17(2).
(B) Key legal principles include that simultaneous publication of the notification under Section 4(1) and the declaration under Section 6 was valid in law prior to the Amendment Act 68 of 1984 and remains valid post-1991 for Uttar Pradesh; the State may exercise eminent domain under Section 17(4) to dispense with the enquiry under Section 5-A; and where a writ petition challenges such acquisitions on facts not raised in the High Court, those factual points are not permitted to be re-argued. The Governments urgency-based exercise of power without conducting the enquiry is not illegal, and the act of acquisition following simultaneous publication and vesting is conclusive.
Facts of the case:
The appellants challenged before the Supreme Court, by special leave, the orders of the Division Bench of the Allahabad High Court dated May 20, 1976 in W.P. Nos. 792/75 and 5032/75, batch. They contested the validity of the notification published under Section 4(1) on October 12, 1974 and the declaration under Section 6 dated September 28, 1974, contending that the declaration could not validly precede the Section 4(1) notification and that the simultaneous publication was therefore unlawful. The High Court recorded that both were in fact published simultaneously on October 12, 1974. It was not disputed that the State, in exercise of its power of eminent domain under Section 17(4), dispensed with the enquiry under Section 5-A. The appellants also sought to contend that their land was small in extent and other lands were excluded, and that there were procedural infirmities, though these were not pressed below.
Findings of Court:
The Supreme Court held that the simultaneous publication of the notification under Section 4(1) and the declaration under Section 6 was valid in law both before and after the Amendment Act 68 of 1984, and that for Uttar Pradesh the 1991 Amendment Act 5 further cemented this settled position. The Court found that the State was entitled to dispense with the enquiry under Section 5-A under Section 17(4), and that there was no illegality in the simultaneous publication. It also found that the appellants could not raise for the first time at the Supreme Court arguments that were available but not raised before the High Court, as those are purely questions of fact for the Land Acquisition Officer to determine on the material available to the State.
Issues:
Whether the simultaneous publication of the notification under Section 4(1) and the declaration under Section 6 was legally valid at the relevant time and under the amended regime; whether the State could dispense with the enquiry under Section 5-A under Section 17(4); and whether the appellants could re-argue factual and procedural contentions that were not raised before the High Court.
Ratio Decidendi:
The simultaneous publication of the notification and declaration was lawful under the pre-1984 framework and continued to be valid after the 1984 and 1991 amendments for Uttar Pradesh. The States power under Section 17(4) to dispense with the enquiry under Section 5-A is valid, and such an exercise, including urgency-based decisions, does not render the acquisition illegal. Factual and procedural arguments not raised in the High Court are not justiciable at the Supreme Court stage and must be directed to the Land Acquisition Officer for determination based on the record.
Result:
The appeals are dismissed without costs. The Land Acquisition Officer is directed to pass awards within six months of receiving this Courts order.
(A) The Land Acquisition Act, read with the Uttar Pradesh Land Acquisition Amendment Act 5 of 1991, governs the acquisition where the State, exercising its power of eminent domain under Section 17(4), dispenses with the enquiry under Section 5-A. Section 4(1) provides for the publication of a notification of acquisition, and Section 6 requires a declaration, with the Amendment Act 68 of 1984 having settled that pre-1984 law permits simultaneous publication of both instruments. The 1991 Amendment brought the State of Uttar Pradesh in line with this settled position, validating the simultaneous October 12, 1974 publication of the notification and declaration as a lawful exercise of power, including the dispensing with the Section 5-A enquiry, and enabling further steps under Section 9 and vesting of land free from encumbrances under Section 17(2).
(B) Key legal principles include that simultaneous publication of the notification under Section 4(1) and the declaration under Section 6 was valid in law prior to the Amendment Act 68 of 1984 and remains valid post-1991 for Uttar Pradesh; the State may exercise eminent domain under Section 17(4) to dispense with the enquiry under Section 5-A; and where a writ petition challenges such acquisitions on facts not raised in the High Court, those factual points are not permitted to be re-argued. The Governments urgency-based exercise of power without conducting the enquiry is not illegal, and the act of acquisition following simultaneous publication and vesting is conclusive.
Facts of the case:
The appellants challenged before the Supreme Court, by special leave, the orders of the Division Bench of the Allahabad High Court dated May 20, 1976 in W.P. Nos. 792/75 and 5032/75, batch. They contested the validity of the notification published under Section 4(1) on October 12, 1974 and the declaration under Section 6 dated September 28, 1974, contending that the declaration could not validly precede the Section 4(1) notification and that the simultaneous publication was therefore unlawful. The High Court recorded that both were in fact published simultaneously on October 12, 1974. It was not disputed that the State, in exercise of its power of eminent domain under Section 17(4), dispensed with the enquiry under Section 5-A. The appellants also sought to contend that their land was small in extent and other lands were excluded, and that there were procedural infirmities, though these were not pressed below.
Findings of Court:
The Supreme Court held that the simultaneous publication of the notification under Section 4(1) and the declaration under Section 6 was valid in law both before and after the Amendment Act 68 of 1984, and that for Uttar Pradesh the 1991 Amendment Act 5 further cemented this settled position. The Court found that the State was entitled to dispense with the enquiry under Section 5-A under Section 17(4), and that there was no illegality in the simultaneous publication. It also found that the appellants could not raise for the first time at the Supreme Court arguments that were available but not raised before the High Court, as those are purely questions of fact for the Land Acquisition Officer to determine on the material available to the State.
Issues:
Whether the simultaneous publication of the notification under Section 4(1) and the declaration under Section 6 was legally valid at the relevant time and under the amended regime; whether the State could dispense with the enquiry under Section 5-A under Section 17(4); and whether the appellants could re-argue factual and procedural contentions that were not raised before the High Court.
Ratio Decidendi:
The simultaneous publication of the notification and declaration was lawful under the pre-1984 framework and continued to be valid after the 1984 and 1991 amendments for Uttar Pradesh. The States power under Section 17(4) to dispense with the enquiry under Section 5-A is valid, and such an exercise, including urgency-based decisions, does not render the acquisition illegal. Factual and procedural arguments not raised in the High Court are not justiciable at the Supreme Court stage and must be directed to the Land Acquisition Officer for determination based on the record.
Result:
The appeals are dismissed without costs. The Land Acquisition Officer is directed to pass awards within six months of receiving this Courts order.
ORDER
These appeals by special leave arise from the order of the Division Bench of the Allahabad High Court made on May 20, 1976 in W.P. Nos. 792/75 and 5032/75 and batch. The appellant challenged, along with yet other batch, the validity of the notification published under Section 4(1) on October 12, 1974 and declaration under Section 6 dated September 28, 1974 contending that the declaration under Section 6 could not be made until the notification under Section 4(1) was published in accordance with law. Therefore, the notification is bad in law. The High Court noted, as a fact, that the notification under Section 4(1) and the declaration under Section 6 were simultaneously published on October 12, 1974. There is no bar on the Government making the order that before publication, of Section 4(1) declaration under Section 6 should also be published. It is not in dispute that the State had in exercise of its power of eminent domain under Section 17(4) of the Act, dispensed with the enquiry under Section 5A. It is settled law that simultaneous publication of the notification under Section 4(1) and the declaration under Section 6 was valid in law prior to the coming into force of the Amendment Act 68 of 1984. It is also seen that in relation to the State of Uttar Pradesh, Land Acquisition [Amendment] Act 5 of 1991 has been brought into force w.e.f. February 17, 1991 and, therefore, in relation to the State of U.P. It is now settled law that when the State exercises the power of eminent domain and in exercise of the power under Section 17(4) dispensing with the enquiry under Section 5-A to acquire the land under Section 4(1) the State is entitled to have the notification under Section 4(1) and the declaration under Section 6 simultaneously published so as to take further steps as required under Section 9 of the Act, i.e., issuance of the notice and taking possession thereof under Section 17(2) of the Act. Thereafter, the land stands vested in the State free from all encumbrances. In view of the urgency, the Government exercised power of eminent domain and dispensed with the enquiry under Section 5-A; we do not find any illegality in the action taken by the respondents in having the notification under Section 4(1) and the declaration under Section 6 simultaneously published. It is then sought to be contended that the appellant has a small extent of the land and other lands have been excluded from acquisition and, therefore, it is arbitrary exercise of power. He also seeks to contend the procedural infirmities, but unfortunately none of the contentions have been pressed before the High Court, though might have been raised in writ petition. Under those circumstances, we cannot permit the appellants to argue these points afresh which are purely questions of fact to be verified on the basis of the material as the State had no opportunity to deal with them.
2. The appeals are accordingly dismissed but, in the circumstances, without costs. The Land Acquisition Officer is directed to pass the awards within a period of six months from the date of the receipt of the order of this Court.
*******